THE QUEEN v. FERNANDO et al

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THE QUEEN v. FERNANDO et al.
P. C., Nuwara Eliya, 8,729.
Ordinance No. 10 of 1844, as. S3 and 36—Neglect to grant permit for removal of
arrack—Discretion of persons authorized to grant permit.
Under sections 33 and 36 of the Ordinance No. 10 of 1844, a licensedretail dealer in arrack is no more bound than the Government Agent isto grant a permit for the removal of arrack. They have a discretionto grant or withhold it according to circumstances.
The punishment provided in section 36 is in respect of those whoattempt to exercise this discretion for reward or gratuity.
HE accused in this case, being licensed retail dealers in arrack,
were prosecuted for having neglected to grant a permit forthe removal of arrack, in breach of section 36 of Ordinance No. 10of 1844. The second accused was convicted and sentenced to paya fine of Rs. 50.
On the motion of his counsel, this judgment was brought inreview before the Supreme Court.
Dornhorst, for appellant.
Templer (Acting Solicitor-General), for respondent.
21st February, 1895. Lawrie, A.C.J.—
This conviction under the 36th section of the Arrack Ordinance,No. 10 of 1844, came before me in review at the instance of theaccnsed, who was fined Rs. 50 by the Police Magistrate ofNuwara Eliya.
The parties empowered by the 33rd clause to grant permits are
the Government Agent of the Province; (2) any person dulyauthorized in writing under the hand of the Government Agent;(3) any licensed retail dealer for removal within the limits of hisdistrict.
The learned Magistrate implies that every licensed retaildealer is bound to grant a permit whenever his customer asks forone. If the Legislature had meant to make that imperative and topunish every retail dealer who refused to give every purchaser apermit, it would have been easy to have so enacted, but I do notfind that the duty is cast more on the vendor than on the Govern-ment Agent or on the persons appointed by him, or on any otherlicensed retail dealer. I think it is not an imperative duty thrownon these three classes of people, but a discretion given to themto be exercised or withheld according to circumstances. TheOrdinance however provides a punishment for those who attempt

Cur. adv. vult.
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to make this discretion an instrument of extortion. If they makethe granting of a permit depend on payment to them of a fee,gratuity, or reward, they shall be punished.
It seems to me impossible to read the 33rd and 36th clauses asmeaning that men can demand permits of removal, and that theman refusing is guilty of an offence merely if he refuses orneglects or delays to grant one. A Government Agent (and thesame may be said of the other persons) may very reasonably say :“ I know nothing about the applicant,” or “ I know him to be of“ doubtful character, let him go to some one who knows him better,“ or who is willing to take a responsibility which I am unwilling to“ take.” Of course the position of the Government Agent wouldbe very different if he were to say to the applicant, “ My fee for“granting a permit is Rs. 2‘)0. You cannot get one from me“ until that is paid."
For these reasons, the conviction is set aside and the accused isacquitted, there being no evidence that he demanded or suggestedthe payment to him of a fee, gratuity, or reward.